Vijay Mallya is one of the most talked-about and prominent business personalities of India. Vijay Mallya owned India's biggest liquor company, private jet, an Airbus, and many other riches such as a fleet of luxury cars and a private yacht. Mallya left India in 2016 in the wake of cases registered by the ED as well as the CBI for alleged fraud and money laundering of around 9000 crores. In January 2019, he was declared a Fugitive Economic Offender by the Indian Government under the Fugitive Economic Offenders Act 2018. Mallya was allegedly involved in false representation to the bank on his financial condition and the value of his securities to be relied upon.

The funds raised through loans were diverted and laundered. He flew to the UK. Now, The United Kingdom HC has rejected his application for appeal to the UK Supreme Court against the extradition to India in the IDBI Bank fraud case.The UK government's Home Office may soon issue a directive allowing his extradition. In this article, the author has given a piece of background information on Extradition in India, the India-UK treaties, and the development in the Vijay Mallya case.

Extradition

Extradition is a system where one sovereign surrenders the fugitive offender, criminal, or an accused to another sovereign. This delivery of individuals to the requesting sovereign is based on treaties or bilateral arrangements. Sometimes it is a matter of courtesy or to maintain goodwill between the countries.

According to Black's Law Dictionary, extradition means:
The surrender by one State or Country to another of an individual accused or convicted of an offense outside its territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.

The principle is based on the interest of the civilized community that the criminal should not go unpunished and it's the comity of nations that each country should assist the other country in delivering justice.

Principles Of Extradition In India

The concept of extradition in India revolves around three principles of extradition. The following:

1. Principle of Double Criminality
   The principle of dual criminality states that, Extradition can only be made available if the offense committed by the Individual is an offense in both the jurisdictions.it means that the requested state can refuse to extradite the fugitive offender if the offense is not a criminal act in their state.
    
2. Principle of Specialty
   The extradition is first requested to the state. The Individual can only be tried to the offense mentioned in the extradition request by the state. The main object of the principle is to prevent blanket from extradition requests. He can be only extradited for the crime he committed which is mentioned in the request.
   
   But the principle can be waived after the arrest of the fugitive offender. He can be tried for the crimes which are not mentioned in the extradition request.
    
3. Political exception
   The request albeit extradition can be declined if the real purpose of the extradition is backed by political purposes. The extradition can be requested by the states for his political opinion rather than the crime committed by him. Also, there are exceptions like if the person has committed acts of terrorism, even it is backed by political motives he will be extradited. The term 'Political Offense' is not defined in International Law. It is backed by the precedents in the respective jurisdictions.

Analysis On Extradition In India

Law relating to extradition in India is governed by the Extradition Act, 1962.  Extradition Treaties obtained between India and other countries govern the extradition principles between the said countries. Section 34 of the  1962 Act, has extra-territorial jurisdiction.

It envisages that:
Extradition offense committed by any person in a Foreign State shall be deemed to have been committed in India and such person shall be liable to be prosecuted in India for such offense.
In the case of Daya Singh Lahoria v. Union of India[1], The Supreme Court expatiated the importance of extradition. The Court observed that the laws of extradition in India are a great step for international cooperation in dealing with crime. It is for this reason that the Congress of Comparative Law at Hague in 1932, resolved that States should treat extradition as an obligation resulting from the international solidarity in the fight against crime.

India- Uk Extradition Treaty

The Government of India presently has bilateral Extradition Treaties with forty-two countries and Extradition Arrangements with nine more countries to quicken and ease the process of extradition. The extradition treaty between the Government of India and the Government of the United Kingdom of Great Britain and Northern Ireland was signed and came into force in December 1993.

The largest number of fugitives have been extradited from the UAE (19), followed by the US (nine). So far, only one fugitive has been extradited from the UK, namely Samirbhai Vinubhai Patel, on charges of murder and criminal conspiracy.

According to Article 1 of the Extradition treaty of India and the UK, India and the UK have to extradite any person being accused or convicted of an extradition offense committed within the territory of one State either before or after the entry into force of this Treaty. Each contracting state shall afford each other mutual assistance in criminal matters[2]. An extradition offense is defined as the offense which is punishable in both the contracting States by a term of imprisonment for more than one year excluding offenses which have political character but inclusive of terrorism, causing an explosion, etc.

The request for extradition could be refused if the person is being tried for the extradition offense in the courts of the requested State or else if the accused satisfies that the prosecution in the requested State is unjust, oppressive, prejudiced, or discriminatory.

Where the request is for a person already convicted, then a certificate of conviction is necessary. In urgent cases, the person may be arrested by the requested State until his extradition request is processed. However, he may be set at liberty after the expiration of 60 days from the date of arrest if his extradition request has not been received. Once a person is extradited to the requesting State, he can only be prosecuted for the offense requested, any lesser offense, or any offense consented to by the requested State within a period of 45 days.

Extradition may be refused for an offense involving capital punishment in the requesting State whereby no death penalty is given in the requested State for the same offense. After extradition is granted, the requested State shall surrender the accused at an indicated point, or the requesting State shall remove the person from the territory within one month or as specified.

Critical Analysis
With the advent of Globalization and the connectivity with other countries, it has been less difficult for the States to catch hold of the fugitive offender of the country. But there are several complexities which the Government would face during the extradition process. India's unsuccessful attempts to bring back offenders like David Headley, Warren Anderson, and Vijay Mallya, for example, it becomes important to understand the obstacles that face the country in extraditing fugitives from abroad.

Generally, extradition treaties follow a standard framework and specify the conditions under which a fugitive may or may not be extradited. Older bilateral treaties, specify extradition offenses through the list system and contain an exhaustive list of offenses for which fugitives can be surrendered. Newer treaties adopt the dual criminality approach, which provides that a fugitive will be extradited for an offense, only if it is a crime in both countries. To begin with, it is difficult to establish treaty principles for crimes peculiar to India's socio-cultural conditions, such as dowry harassment, for instance.

The double jeopardy clause, which debars punishment for the same crime twice, is the primary reason why India, for example, has been unable to extradite David Headley from the US. Headley, an American terrorist involved in plotting the 26/11 Mumbai attacks, has already been sentenced to imprisonment by US courts, for 22 killings six Americans. However, Headley is yet to be tried by Indian courts for the deaths of nearly 140 Indian nationals in the same attacks.

Soering v. the United Kingdom, a landmark judgment decided by the European Court of Human Rights equated poor prison conditions with “torture” and “inhuman or degrading treatment”. As a result, the UK and other European countries have often denied extradition requests on the possibility that the requested person will be subject to poor conditions or custodial violence in India's prisons. In 2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar Chawla, stating that his human rights may be violated over 30 severe conditions in Delhi's Tihar jail.

Because of the strong inclination of UK and European courts to consider poor prison conditions as a form of human rights violation, fugitives often raise this as a challenge during extradition hearings.

Of late, instances of high-profile fugitives involved in economic offenses and financial irregularities have surfaced in India. Notably, jeweler diamond Nirav Modi and his uncle Mehul Choksi, who have allegedly duped the Punjab National Bank of approximately INR140 billion. Modi has escaped to London, while Choksi has reportedly taken up citizenship of the Caribbean island of 38 Antigua.

Extradition procedures are further complicated by unreasonable delays and variance in the documentary requirements of foreign countries.

Conclusion
Despite binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex, and heavily depends on domestic law and politics of the requested state. This is not surprising as extradition is, after all, a sovereign decision. Nonetheless, there are factors involved in extradition over which India can exercise control. India could adopt a targeted approach to resolve these issues, and thereby improve its success rate.

Now, those bankers have rejected Vijay Mallya's proposal to accept 4000 crores. The UK Home Secretary Sajid Javid orders Mallya's extradition to India and recently the Royal Court dismissed the appeal of Mallya against a 2018 extradition order by a lower court in the country.
 
End-Notes:

1. 2001 (4) SCC 516
2. https://mea.gov.in/Images/CPV/leta/UK_Extradition_Treaties.pdf

Written By: Ukkash F, Sastra School of Law, Tamil Nadu.